Belot et al v. LTF Club Operations Company, Inc.

Filing 42

MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 8/30/2016: Defendants' motion for summary judgment 33 is granted. Civil case terminated. [For further details see memorandum opinion and order.] Mailed notice(is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GARY BELOT and ILONA BELOT,
Plaintiffs,
v.
LTF CLUB OPERATIONS COMPANY,
INC., and LIFETIME FITNESS,
Defendants.

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No. 14-cv-9204
Judge Ronald A. Guzmán

MEMORANDUM OPINION & ORDER
The Court grants Defendants’ motion for summary judgment [33]. Civil case terminated.
STATEMENT
This case concerns claims of premises liability and loss of consortium related to plaintiff
Gary Belot’s (“Plaintiff”)1 trip and fall at Lifetime Fitness, a gym owned and operated by LTF
Club Operations Company, Inc. (collectively “Defendants”).
FACTS
During the summer of 2013, Plaintiff received a guest pass to Lifetime Fitness in the
mail. (Defs.’ Facts [Dkt. # 35] ¶ 12.) The pass came with certain restrictions, however: by its
plain terms (written on the back of the pass), it required guests to present a photo ID and take a
“Center Tour with [a] Member Engagement Advisor” before gaining access to the gym. (See Id.
¶ 14, Ex. D.)2 Nonetheless, on July 25, 2013, Plaintiff took it upon himself to enter the gym and

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Technically, Plaintiff is suing for negligence, whereas his wife Ilona Belot is suing for loss of
consortium. For narrative ease the Court will use the term “Plaintiff” in the singular.
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Plaintiff disputes this fact by suggesting that the pass does not state the above conditions “on its
face,” and that, in any event, the fact is immaterial. (Pl.’s Resp. Defs.’ Facts [Dkt. # 36] ¶ 15.)
Not so. The conditions on the guest pass are material to Plaintiff’s status as an invitee/trespasser

explore on his own. (Id. ¶ 18.) Although there was no one at the front desk when he first entered,
Plaintiff waited there only three minutes, after which he went to the locker room, without
presenting a photo ID or taking a tour with a membership consultant, and indeed without even
notifying any gym employee of his presence. (Id.; Pl.’s Dep. [Dkt # 35, Ex. C] 50:19-51:2.)3
Shortly thereafter, while trying to get on an elliptical machine, he tripped and fell over a set of
electrical cords and conduits that were on the floor, (Pl.’s Resp. Defs.’ Facts [Dkt. # 36] at ¶¶ 910), which he claims to have caused permanent injuries, (Compl. [Dkt. # 1-1] at 3). Defendants
now move for summary judgment on both of Plaintiff’s claims: negligence/premises liability
(Count I) and loss of consortium (Count II).
LEGAL STANDARD
Summary judgment is appropriate where the admissible evidence shows that no genuine
dispute exists as to any material fact and the movant is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56(a). “A ‘material fact’ is one identified by the substantive law as
affecting the outcome of the suit.” Bunn v. Khoury Enters., Inc., 753 F.3d 676, 681 (7th Cir.
2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “A ‘genuine issue’
exists with respect to any such material fact, and summary judgment is therefore inappropriate,
when ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving
(as discussed in the analysis section). Moreover, in disputing this fact, Plaintiff refers broadly in
his response to “Exhibit B,” which is his 149-page deposition transcript. He does not, however,
pin cite any testimony, which violates Local Rule 56.1’s requirement that a party who disputes a
fact must “make specific reference” to supporting exhibits. See L.R. 56.1; see also Jeralds v.
Astrue, 754 F. Supp. 2d 984, 985 (N.D. Ill. 2010) (explaining that judges are not “archaeologists
searching for treasure” in a party’s presentation of the record). Accordingly, Defendants’
paragraph 14 is deemed admitted because it is otherwise supported by the record (namely, an
exhibit containing an actual guest pass from June 2013 and deposition testimony from
Defendants’ former manager confirming that the above conditions were standard on guest
passes).
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Plaintiff objects to this paragraph as immaterial, but it is similarly relevant to his status as a
trespasser, as discussed below.
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party.’” Bunn, 753 F.3d at 681-82 (citing Anderson, 477 U.S. at 248). Conversely, “where the
factual record taken as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is nothing for a jury to do.” Id. at 682 (citing Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (emphasis in original)). In determining whether a genuine
issue of material fact exists, the court construes the evidence and all inferences that reasonably
can be drawn therefrom in the light most favorable to the nonmoving party. Id. (citing Anderson,
477 U.S. at 255).
ANALYSIS
I.

Count I – Negligence/Premises Liability
To succeed on a claim for negligence in Illinois, “the plaintiff must prove that the

defendant owed a duty, that the defendant breached that duty, and that the defendant’s breach
was the proximate cause of injury to the plaintiff.” Am Nat’l Bank & Trust Co. of Chi. v. Nat’l
Adver. Co., 594 N.E.2d 313, 318 (Ill. 1992). In that respect, Defendants argue that there was
either no breach, since the cord and conduit were open and obvious, or that there was no duty of
reasonable care, given that Plaintiff was a trespasser. Because the Court finds that Plaintiff was
indeed a trespasser when he fell, it will confine its discussion to that issue only.
(A)

Plaintiff’s Status as a Trespasser

Under Illinois law, the duty a landowner owes to a person on the land depends upon that
person’s status, such as invitee or trespasser.4 Rhodes v. Ill. Cent. Gulf R.R., 665 N.E.2d 1260,
1268 (Ill. 1996). This is a question of law where, as here, the pertinent facts are not disputed.
Basham v. Hunt, 773 N.E.2d 1213, 1224 (Ill. App. Ct. 2002). “A person is an invitee if (1) he
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For invitees, landowners owe them a duty of “reasonable care under the circumstances.” 740
Ill. Comp. Stat. § 130/2. For trespassers, however, a landowner need only refrain from willful
and wanton conduct. Roland v. Langlois, 945 F.2d 956, 959 (7th Cir. 1991). The parties do not
suggest that Plaintiff was a licensee, and, in any event, the duty of care owed by landowners to
invitees and licensees is the same under Illinois law. See 740 Ill. Comp. Stat. § 130/2.
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enters the premises of another by express or implied invitation; (2) his entry is connected with
the owner’s business or with an activity the owner conducts or permits to be conducted on his
land; and (3) there is a mutuality of benefit or a benefit to the owner.” Blakely v. Camp
Ondessonk, 38 F.3d 325, 327-28 (7th Cir. 1994) (citation omitted). “A trespasser is a person who
enters the premises without permission, invitation or other right, and intrudes for some purpose
of his own, or at his convenience, or merely as an idler.” Id. (citation omitted). Importantly, a
person’s status is determined at the time of injury, not entry. Roland, 945 F.2d at 959. (citation
omitted).
At first blush, Plaintiff was arguably an invitee when he entered the gym: he received a
guest pass in the mail, which was an express invitation, and the purpose of that invitation was
ultimately to enroll him as a gym member, which is directly related to Defendants’ business. But
invitees may nonetheless lose their status and become trespassers when, after being invited onto
the premises, they go to an area beyond the scope of an invitation or otherwise deviate from
conditions of that invitation. See Cockrell v. Koppers Indus., Inc., 667 N.E.2d 676, 680 (Ill. App.
Ct. 1996); Rodriguez v. Norfolk & W. Ry. Co., 593 N.E.2d 597, 611 (Ill. App. Ct. 1992); see also
Orthmann v. Apple River Campground, Inc., 757 F.2d 909, 912 (7th Cir. 1985) (“[T]he mere fact
that you invite people onto your property for a fee does not make them business invitees on the
rest of the property.”). This is precisely what Defendants suggest happened: Plaintiff exceeded
the scope of his invitation when he took it upon himself to explore the gyms, and the Court
agrees.
The scope of Plaintiff’s invitation was set by the conditions on the pass: he was invited
only to the extent that he presented a photo ID and took a membership tour. Thus, he became a
trespasser the second he walked passed the front desk and ignored the check-in and membership

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tour process. This conclusion is strengthened by considering the purpose for which the invitation
was extended. See Blakely, 38 F.3d at 327-28 (7th Cir. 1994); see also Restatement (Second) of
Torts § 332 (“In determining whether an invitee exceeded the scope of an invitation, the purpose
of the which the land is held open, or the particular business purpose for which the invitation is
extended, is of great importance.”). The business purpose for this invitation was clearly to
provide Defendants with an opportunity to increase enrollment. (See Defs.’ Facts ¶¶ 14-15; see
also id. Ex. D at 9:16-19; 12:9-19; 16:20-24-17:1-4.) Yet it is undisputed that Plaintiff failed to
check in,5 make any payment to the gym, take a tour with a membership consultant, or otherwise
notify an employee of his presence. (See Pl.’s Resp. Defs.’ Facts [Dkt. # 36] ¶ 18.) Defendants
were thus denied the opportunity to meet with Plaintiff, give him a tour of the club, point out the
benefits of membership, etc. In other words, Defendants had no opportunity to make a sales
pitch, whereas the terms of the invitation make it clear that a sales pitch, or membership tour,
was part of the package.
In failing to comply with the terms of the invitation, Plaintiff undermined the business
purpose of the guest pass, as well as its specific terms and conditions. Accordingly, the Court
finds that Plaintiff exceeded the scope of Defendants’ invitation, making him a trespasser when
he fell. See Blakely, 38 F.3d at 327 (similarly finding that the plaintiff was a trespasser on a camp
ground, despite it being open to the public and heavily advertised as such, because she “did not
enter through the main entrance, did not register with the front office, [and] did not pay a fee”);
Soucie v. Drago Amusements Co., 495 N.E.2d 997, 999 (Ill. App. Ct. 1986) (holding as a matter
of law that the plaintiff lost her status as an invitee and became a trespasser when she wandered
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Although no one was at the front desk when Plaintiff entered the gym, he does not argue that
the absence of front-desk personnel somehow alters the analysis of his status as a
licensee/trespasser.
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from the public area of a carnival in into an open trailer behind one of the rides, even though (1)
the area was easily accessible and other patrons were seen walking in or around the trailer, and
(2) there were no signs or other deterrents to entry).
Plaintiff’s perfunctory attempt to avoid this conclusion is unpersuasive. Citing Rhodes
(above), he broadly characterizes the guest pass as carte blanche to explore the gym, since its
purpose was to bring in new business. But Rhodes is inapposite, insofar as it did not concern the
scope of any invitation or guest pass to a place of business, see 665 N.E.2d at 1268; and it is
undisputed that the guest pass Plaintiff received contains express conditions for the invitation,
which he did not satisfy. Thus, while Plaintiff may have had Defendants’ express consent to
enter the gym, nothing in the record suggests that he had permission to bypass the front desk,
ignore Defendants’ policies, and exercise as he saw fit. He was therefore a trespasser as a matter
of law at the time of his accident.
(A)

The Duty Owed: Refraining from Willful and Wanton Conduct

Because Plaintiff was a trespasser, Defendants owed him only a duty to refrain from
willful and wanton conduct, which the Illinois Supreme Court explains as follows:
A willful or wanton injury must have been intentional or the act must have been
committed under circumstances exhibiting a reckless disregard for the safety of
others, such as a failure, after knowledge of impending danger, to exercise
ordinary care to prevent it or a failure to discover the danger through recklessness
or carelessness when it could have been discovered by the exercise of ordinary
care.
Am. Nat’l Bank & Trust Co. v. City of Chi., 735 N.E.2d 551, 557-58 (Ill. 2000) (citations
omitted). Under this standard, where a landowner “takes no action to correct a condition even
though it was informed about the dangerous condition and knew that other persons had
previously been injured because of the dangerous condition,” he may be liable for willful and
wanton conduct. Salazar v. Crown Enters., 767 N.E.2d 366, 371 (Ill. App. Ct. 2002) (citation
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omitted and emphasis added). However, where there is no evidence that the landowner engaged
in any intentional act or knew of other injuries/accidents caused by the allegedly dangerous
condition, his conduct does not rise to the level of willful and wanton. Id. (citation omitted).
Here, Plaintiff has not argued that Defendants’ conduct was intentional or that they
otherwise knew of persons who had been previously injured by the cords/conduits, nor does the
record contain any evidence to suggest as much. It follows that Defendants did not breach their
duty of refraining from willfully and wantonly injuring Plaintiff, and his negligence claim
necessarily fails.
Nonetheless, Plaintiff argues that there are special circumstances where a heightened duty
to warn trespassers may be imposed:
Even if Defendant’s [sic] position would be true, Defendant knowing conduits
and wires represent a risk to anyone upon its premises it [sic] would still have an
obligation or duty to exercise ordinary care to worn [sic] Plaintiff Gary Belot of
such dangerous conditions. See Lee v. Chi. Transit. Auth. 152. Ill. 2d 432, 448,
606 N.E.2d 493, 499 (1992) (applying the Restatement (Second) of Torts § 337).
Consequently, Defendant would owe a duty to Plaintiff even if the Plaintiff was a
trespasser, because Defendant knew about the dangerous condition, loose power
cords and wire conduits scattered around its exercise equipment, and had plenty
of reasons to anticipate a trespasser entering its facility to trip and be injured.
(Pl.’s Br. in Opp’n [Dkt. # 38] at 7.) Plaintiff may be correct about Lee’s principles, but he is
mistaken about their application.
Section 337 of the Restatement, entitled “Artificial Conditions Highly Dangerous to
Known Trespassers,” provides that a possessor of land owes a duty to exercise reasonable care to
warn a trespasser of an artificial condition upon the land which involves a risk of death or serious
bodily harm. Restatement (Second) of Torts § 337. Yet as Lee explained, this heightened duty
comes into play only if (1) the trespasser is in a “place of danger,” and (2) the landowner knew
or should have known of the trespasser’s presence, and (3) the landowner should have

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anticipated that the trespasser would not appreciate the risk. 606 N.E.2d at 449-501. None of
these prongs is met in this case.
First, the condition Plaintiff tripped over was not a “place of danger” within the meaning
of Lee, which concerned an unprotected, high-voltage electrified railway, located just a few feet
from a pedestrian walkway. Id. That Lee applied the Restatement’s “highly dangerous” exception
is hardly surprising given that simply coming into contact with an electrified rail can be life
threatening. Other Illinois courts have similarly focused on the risk of serious injury or death in
applying this exception, but they have declined to expand it beyond typical places of danger,
such as railroad tracks, exposed high-voltage lines, and risks of drowning. See, e.g., Eshoo v.
Chi. Transit Auth., 723 N.E.2d 339, 334 (Ill. App. Ct. 1999); Mostafa v. City of Hickory Hills,
677 N.E.2d 1312, 1317 (Ill. App. Ct. 1997); Miller v. General Motors Corp., 565 N.E.2d 687
(Ill. App. Ct. 1990).6 The condition that injured Plaintiff, however, is nothing of the sort, and he
has made no argument to persuade the Court otherwise (beyond the conclusory citation to Lee
itself). Indeed, to characterize an extension cord as “highly dangerous” would expand Lee and its
progeny far beyond their facts and otherwise swallow the rule into the exception, rendering
virtually any condition “highly dangerous” and making the label “trespasser” practically
meaningless for premises liability purposes — a move plainly inconsistent with Illinois law. See
Lee, 606 N.E.2d at 499 (rejecting the plaintiff’s argument to abolish the distinction between
trespassers and invitees because “the [Illinois] legislature’s recent iteration on the
licensee/invitee classification [in the Premises Liability Act] and its determination to leave intact

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Illinois’ Pattern Jury Instructions further support this interpretation: “An owner owes no duty to
a trespasser . . . [beyond] a duty not to cause injury willfully and wantonly. . . . If, however, the
[owner] knew or should have known that an artificial condition . . . presented a risk of death or
serious bodily injury . . . then the [owner] had a duty to exercise ordinary care to warn of the
condition.” IPI 120.02.01 (citing Lee, 606 N.E.2d at 449).
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the common law rule concerning trespassers . . . persuades us that society yet finds some benefit
in retaining the trespasser classification”).
Second, even if the Court were to characterize the extension cords as a place of danger,
Plaintiff’s argument would still fail because he has not shown that Defendants knew or should
have of his presence. Defendants’ actual knowledge of Plaintiff’s presence is surely off the table,
since it is undisputed that he did not notify anyone upon entering the gym. The only question,
then, is whether Defendants should have known that he was trespassing. To this end, Plaintiff
broadly argues that “Defendant knew about the dangerous condition, loose power cords and wire
conduits scattered around its exercise equipment, and had plenty of reasons to anticipate a
trespasser entering its facility to trip and be injured.” (Pl.’s Br. in Opp’n [Dkt. # 38] at 7.) But
this sort of conclusory statement, lacking a record cite, cannot create a triable issue on summary
judgment, and, in any event, it would still fail under Lee’s principles.
The court in Lee determined that the CTA should have known of trespassers near the
electrified rail because (1) the CTA stipulated to such knowledge, (2) the rail was only a few feet
from a busy public walkway, and (3) there was evidence of ten prior accidents over a similar
segment of track. 605 N.E.2d at 501. Defendants’ gym, in contrast, is a private business,
Defendants have not admitted to knowing of any recurring trespasser problems or accidents, and
Plaintiff has not provided any evidence from which a jury could infer such knowledge. The
Court therefore has no basis to find that Defendants knew or should have known of Plaintiff’s
presence.7
This holding dovetails with the policy principles underlying Lee as well. By its own
terms, Lee represented a “slight departure from the traditional rule regarding the duty owned to
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Given that the above reasons necessarily undermine Plaintiff’s attempt to bring this case within
the holding of Lee, and that his perfunctory argument (above) is all he offers on the subject, the
Court need not address Lee’s third prong.
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trespassers.” Id. Yet this departure is owed largely to the egregious facts of the case: the CTA in
Lee did not put up any markings indicating that there was a third rail, much less with a live
electric current, and there were no markings on the rail itself, making it “virtually
indistinguishable” to the general public. Id at 452-53. Thus, Lee justified the shift from the
traditional rule regarding trespassers because, “[i]n the choice of competing considerations of
societal policy, the need for protection against the reasonably foreseeable risk of death or severe
personal injury outweighs the freedom of action that would otherwise characterize the relation of
the possessor of land to a trespasser.” Id. (citation omitted). There are no similar policy concerns
applicable to case: (1) the cords/conduits were not highly dangerous; (2) Defendants had no
reason to expect that Plaintiff would ignore their policies and walk into the gym (a private
business) on his own accord; and (3) Plaintiff testified that he saw some of the cords/conduits
before he tripped and knew that he had to lift his leg to cross over them, which means he
appreciated the risk posed by the cords to at least some degree, (see Pl.’s Dep. [Dkt. # 35, Ex. C]
at 67:14-68:17; 75:12-18). Consequently, Lee is inapplicable, and the proper metric for judging
Defendants’ liability is the “willful and wanton” standard.
Therefore, the Court grants judgment in favor of Defendants on Count I. Similarly,
because loss of consortium claims in Illinois depend on the validity of an injured spouse’s claim,
see Bonavia v. Rockford Inc., 348 Ill. 808 N.E.2d 1131, 1139 (Ill. App. Ct. 2004), the Court
grants judgment in favor of Defendants on Count II as well. Civil case terminated.

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CONCLUSION
For the reasons set forth above, the Court grants Defendants’ motion for
summary judgment [33]. Civil case terminated.
SO ORDERED.

ENTERED: August 30, 2016

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HON. RONALD A. GUZMÁN
United States District Judge

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